In the Matter of James C. Nuhlicek, Respondent, v. Paula Nuhlicek, Appellant. (And Another Related Proceeding.)

In the Matter of James C. Nuhlicek, Respondent, v Paula Nuhlicek, Appellant. (And Another Related Proceeding.) [MAJORITY] — Appeal from that part of an order of the Family Court of Schoharie County (Lamont, J.), entered May 8, 1982, which denied respondent’s application for counsel fees. On August 19, 1981, James Nuhlicek (petitioner) commenced a proceeding in Family Court against his wife Paula Nuhlicek (respondent) for custody of their infant son. On September 1, 1981, respondent commenced a cross petition against her husband for custody of the same child. In due course, respondent’s attorney requested an award of counsel fees. This request was denied by Family Court upon the ground that respondent was not indigent. This appeal ensued. There must be a modification as this court has recently abandoned the indigency test that was applied by Family Court (Walsh v Walsh, 92 AD2d 345). Order modified, on the law, by reversing so much thereof as denied respondent’s application for counsel fees and matter remitted to Family Court for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Casey and Weiss, JJ., concur.